When is a dwellinghouse a “dwellinghouse”?

Readers of this blog (if there are any left after my blog posts have become so few and far between) are no doubt well aware that [for the purposes of the UCO] Use Class C3 in the First Schedule to the Use Classes Order applies to the use of a “dwellinghouse” (whether or not as a sole or main residence) by a person or people forming a single household, as a care home for not more than six residents, or by no more than six residents living together as a single household (other than within Class C4), and that Use Class C4 applies [again for the purposes of the UCO] to the use of a “dwellinghouse” by not more than six residents as a “house in multiple occupation”.

It is important to understand that the sole function of each of the Use Classes in the UCO is to identify a specific use of a building or other land, so as to give effect to Article 3(1A) (repeating the effect of section 55(2)(f) of the 1990 Act) which provides that where a building or other land is situated in England and is used for a purpose of any class specified in Part B or C of Schedule 1 or in Schedule 2, the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. But the Use Classes in the UCO do not define the use of that building or other land for any other interpretative purpose.

As explained by paragraph 13.2 of Chapter 13 in The Essential Guide to the Use of Land and Buildings under the Planning Acts, the word “dwellinghouse” itself is not defined as such in the UCO or in the 1990 Act. However, paragraphs 24 to 26 of former Circular 05/2010 contained a helpful summary of the relevant criteria. The common feature of all premises which can generally be described as dwellinghouses is that they are buildings that ordinarily afford the facilities required for day-to-day private domestic existence. (This was a reference to the judgment in Gravesham BC v SSE (1984) 47 p. & C.R. 142.) It follows from this that an individual bed-sitting room in an HMO would not come within the definition of a “dwellinghouse”, because it does not in itself satisfy the Gravesham test, if the occupants have to share some communal facilities within the building such as a kitchen, bathroom or lavatory.

I went on in that paragraph to make the easy and widely held assumption that it would also be the case that such a building, not being in single occupation, would also fail to meet the Gravesham test. In this it appears that I may have been mistaken. My colleague David Evans has kindly drawn my attention to a High Court judgment in which this point was considered last July - Brent LBC v SSLUHC and Rothchild [2022] EWHC 2051 (Admin)

This case arose from the erection of an extension to an HMO which the developer claimed was permitted development under Class A in Part 1 of the Second Schedule to the GPDO. The LPA contended that this could not be PD, as the building was not occupied as a single dwelling. They served an enforcement notice, but a Planning Inspector upheld the developer’s appeal against the EN and quashed the notice. The LPA then appealed to the High Court under section 289 seeking to overturn that appeal decision. The Secretary of State was prepared to consent to judgment, but the developer fought on, and won.

In giving judgment, the Deputy Judge pointed out that, on the face of it, the LPA’s submission that it is necessary to consider whether a dwellinghouse in C4 use is occupied by or in a manner akin to a single household before it can be said to be a dwellinghouse for the purposes of the GPDO is flatly inconsistent with the language of Use Class C4 itself. Use Class C4 applies only to the use of a dwellinghouse by not more than six residents as an HMO. If the building in question is not a dwellinghouse at all, it will not fall within Use Class C4 in the first place. Equally, if a building is accepted to be in Use Class C4, it must by definition be a dwellinghouse. The Deputy Judge did not accept that the term "dwellinghouse" had been used in a different sense in Use Class C4 to that in which it had been used in the GPDO, unless there were express words to that effect or authority compelling such a conclusion. Barring the exclusion of flats and any building containing flats from the definition of "dwellinghouse" in the GPDO [in this context specifically in Part 1 of the Second Schedule], there is none.

A second argument put forward by the LPA depended on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202, on which I commented in this blog on 27 October 2012. However, that case did not establish that to be a dwellinghouse, the building had to be in single family occupation; it simply upheld the Inspector’s finding in that case that ‘as a matter of fact and degree’ the dwellinghouse was no longer being used for a purpose within Use Class C3 but that the nature of its use had turned it into a sui generis use. This was a material change of use that required (but did not have) planning permission. [However, the building in that case did not thereby cease to be a “dwellinghouse” in the general sense, as it still met the Gravesham test.] Moore (2012) was therefore of no assistance to the LPA in the present case. The LPA’s argument that the HMO must be occupied in a manner akin to a single household if it is to remain a "dwellinghouse" was a proposition which the Deputy Judge found difficult to reconcile with the very concept of an HMO as defined in section 254 of the Housing Act 2004. This argument incorrectly sought to import a requirement which belongs only in Use Class C3, and cannot properly be derived from Moore 2012.

Looking at this judgment in Brent LBC v SSLUHC, it seems clear that the finding that a building satisfies the Gravesham test and is therefore a “dwellinghouse” in the general sense of the word must necessarily be a matter of fact and degree, which lies solely within the jurisdiction of the decision-maker (in this case the Inspector). However, I still have slight doubts as to whether an HMO would necessarily meet the Gravesham test; it would seem to depend on the facts of each case. On the other hand, one cannot ignore the reference in Use Class C4 to the use of “a dwellinghouse……. as a house in multiple occupation”, on which the Deputy Judge specifically commented.

It appears that in this case, the dwellinghouse, as extended, will accommodate no more than six persons and so would come within the parameters of Use Class C4. So it would appear that there is no breach of planning control against which the LPA could take any enforcement action in this case. The position would be different, however, where an HMO already accommodated six residents, and the extension then expanded the dwellinghouse to accommodate a total of eight residents. The erection of the extension itself as PD under Part 1 would appear still to be unassailable, but there would then be a material change of use of the building as a whole from a use within Class C4 to a sui generis use, which would be vulnerable to enforcement action. As none of the bed-sits would be a self-contained dwelling, the 10-year rule would apply, rather than the 4-year rule. As the local housing authority, the council might also consider its powers in relation to the regulation of HMOs under the housing legislation.

As a final thought, Brent LBC (and no doubt other London Boroughs) are constantly on the look-out to prevent the development of "beds in sheds" , and quite rightly so. I don't think the case referred to above provides a loophole for any such development. Whilst the provison of outbuildings is capable of being PD under Class E of Part 1, this would only be PD if it is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". It is well-settled law that the provison of additional sleeping accommodation would be part of the primary residntial use and would not therefore qualify as an incidental purpose within Class E.

© MARTIN H GOODALL